While guest hosting The O'Reilly Factor on August 24, Monica Crowley praised SB 1070 architect Kris Kobach's filing suit against the Obama administration's "deferred action" policy, which allows young undocumented immigrants to temporarily remain in the United States. But Crowley failed to mention that the deportation policy is the continuation of long-standing prosecutorial discretion, and also neglected to report the lawsuit's basic procedural flaws.

Instead, Crowley ignored the weaknesses of the lawsuit and alleged the policy is "illegal," accused the administration of acting "extra-constitutionally," and finally commended Kobach for "fighting the good fight" against a "banana republic."

The lawsuit was filed in district court by Kobach on August 23 on behalf of 10 disgruntled Immigration and Customs Enforcement (ICE) agents and is underwritten by controversial "immigration-restriction" group NumbersUSA, despite the Supreme Court's recent reminder that "[a] principal feature of the removal system is the broad discretion exercised by immigration officials." Nevertheless, the lawsuit challenges the administration's policy of deferred action in deportation proceedings for undocumented youth - a continuation of standard immigration discretion also practiced by George W. Bush - and further undermines its credibility through its choice of plaintiffs.

Not only are these ICE agents disregarding the pro-immigration stance of their parent union to challenge a policy widely regarded as legal by experts, their claims likely represent a "nonjusticiable" intra-agency dispute. As explained by the Immigration Policy Center:

Under the Constitution, federal courts lack "jurisdiction" (i.e. authority) to resolve internal disputes within the other branches of government. The reason is obvious: if government employees could sue their superiors over legal disagreements, they could--quite literally--make a federal case over any difference of opinion. ICE agents hauling the head of the Department of Homeland Security (DHS) into court is like a law clerk suing a judge for writing a decision with which she disagrees--or Kobach's own subordinates in Kansas seeking an injunction requiring him to perform his actual job as Kansas Secretary of State. It's just not how the legal system works.

Furthermore, others doubt whether these plaintiffs have suffered the requisite harm from their policy disagreement with their supervisor in order to confer "standing" on their status as plaintiffs, or have adequately defined under what law they sue. In an email to Media Matters, American Immigration Council Executive Director Benjamin E. Johnson stated this novel lawsuit "is beyond frivolous," an assessment that was mirrored by CNN and New Yorker legal analyst Jeffrey Toobin:

"I can't imagine any judge would even give them standing to file the case, much less decide it on the merits," Toobin said. "I am unaware of any law that allows federal employees to challenge the legality of the actions of their superiors."

This immediate denunciation of Kobach's lawsuit is no surprise. Beyond the common-sense impracticality of allowing government employees the ability to enjoin policies they disagree with, the nonjusticiability of these intra-agency disputes has been publicized in law journals for over twenty years. As noted in a 1991 law review article by Law Professor Michael Eric Herz, Co-Director of the Floersheimer Center for Constitutional Democracy and Chair of the American Bar Association's Section of Administrative Law and Regulatory Practice, this is not a proper "case or controversy" for the courts:

Two parties who share a boss cannot sue each other over a matter the boss can resolve. A necessary corollary to this principle is that an employee cannot sue her own boss over a matter that the boss can resolve; for that reason alone, [an intra-agency] dispute does not pose a case or controversy. In addition, [employees of the same agency] do not represent divergent interests. They merely disagree on the merits.